Robert Clayton Gynane v. Lakehead District School Board, 2014 HRTO 126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Clayton Gynane

Applicant

-and-

Lakehead District School Board

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: January 28, 2014 Citation: 2014 HRTO 126 Indexed as: Gynane v. Lakehead District School Board

WRITTEN SUBMISSIONS

Robert Clayton Gynane, Applicant Self-represented

Lakehead District School Board, Respondent Derek T. Noyes, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges that he was discriminated against in a hiring decision for a job teaching physical education to boys, as it was awarded to a woman he alleges is "far less experienced, less qualified and much younger" than he. He alleges that the principal of the school where he applied to teach phoned him on February 7, 2013 to advise him that he had not been the successful candidate but that she told him he had had a "great" interview.

3In its Response, the respondent denies discrimination. It asserts that it chose the successful candidate for this temporary full time teaching assignment based on the results of the job competition, which included a scoring process and provision for reference checks. The respondent also denies that the principal advised the applicant that he had had a "great" interview.

4The respondent filed a Reply, alleging that the decision not to hire him was taken as a reprisal against him after having reached a settlement of another Application he had filed against the respondent. He states that he can "only speculate" that there were others in the room with the school principal when she called him to advise him he had not been the successful candidate. He alleges that the decision not to hire him "is just the latest example" of the respondent's preference for hiring younger, less experienced and less qualified teachers. He states that the respondent should provide a list of all of its hires, "including age and qualifications at the time of hire, from September 2006". He also points to a February 15, 2013 letter from the respondent regarding the fact that it was cancelling its former "Pool Hire List" and developing a new one. He alleges that this was an opportunity for the respondent to eliminate older teachers from the list. He also challenges the respondent's assertions regarding its February 2013 competition process, including its assertions regarding reference checks and scoring. He also alleges that the fact he was trying to obtain enough hours for Employment Insurance "played a role" in the respondent's hiring decision. He also makes submissions regarding the monetary remedy he seeks.

5This Interim Decision addresses Requests for Order During Proceedings (RFOP) filed by both parties subsequent to the Reply.

Background

6The respondent filed an RFOP in which it seeks to have applicant's Reply struck, or in the alternative, to have the applicant bring a Request for Order During Proceedings to amend his Application. It noted that he had made new allegations in the Reply. It submitted that the allegation that its hiring decision was taken by way of reprisal was a new allegation, as is his allegation that the respondent's failure to hire him was "just the latest example" of the respondent's preference for younger, less experienced and less qualified teachers, and it notes that this allegation was coupled with a request for the respondent to provide a list of all hires, and their details, since 2006. It also submits that his allegation that its new Long Term Occasional list in February 2013, was an opportunity to eliminate older experienced teachers who had previously been on the "Pool Hire List", and that its hiring decision had been influenced by the fact that he was attempting to teach enough days to qualify for Employment Insurance, were new allegations. It also submits that his allegation that there were other people in the room with the principal when she called him to inform him he had not been the successful candidate, was new. Finally, it submits that the applicant's submissions regarding remedy amount to new allegations.

7Further, the respondent submits that any allegations the applicant seeks to make with respect to discriminatory hiring decisions other than the one particularized in this Application, should be barred under the doctrine of res judicata, in light of a Tribunal decision, Gynane v. Lakehead District School Board, 2012 HRTO 803 (Gynane) regarding a previous application by this applicant.

8The respondent also enclosed its September 10, 2013 correspondence to the applicant in which it asked him to seek to amend his Application to reflect the new allegations raised in the Reply. The applicant has not filed an RFOP seeking to amend his Application.

9The applicant filed no response to the respondent's RFOP, but instead filed his own RFOP in which he requests an order for production of documentation. In particular, he seeks:

1. A list of any and all secondary teachers who were placed on the "new LTO list" including their age;
2. A list of any and all secondary teachers who were on the former Pool Hire List and are not on the "New LTO list" including their age;
3. A list of all secondary hires from September 2006 to present and their age at the time of being hired;
4. A list of the starting salaries for all secondary hires from September 2006 to present and the salary that the Board would have had to pay the applicant;
5. A list of all LTO's, given or earned, to secondary teachers from January 2010 to present and their age at the time of their hire;
6. A list of the starting salaries for all LTO hires from January 2010 to present, including Lisa McLeod's, and the salary that the Board would have had to pay the applicant;
7. The Reference Check Forms for Lisa McLeod from Jason Timko, Scott Masters and Jodi Ziebarth;
8. The Reference Check Forms for Kyla Buys from Vicki Shannon and Liz McKinnon;
9. The Reference Check Forms for Curtis Ritchie from Dave McCallum and Mike McNally;
10. The Reference Check Forms for Robert Gynane from Bryan Nunan and Paul Andrews;
11. A list of the number of secondary physical education classes (periods) taught by Lisa MacLeod from January 2010 to present;
12. A list of the number of secondary physical education classes (periods) taught by Robert Gynane from January 2010 to present;
13. Any and all documentation of Lisa MacLeod applying to the respondent for a teaching position prior to her application January 2013;
14. Any and all documentation of Lisa MacLeod's other LTO('s), including her application package(s) and the other teachers competing for the same position and their application packages, including their age;
15. Lisa MacLeod's application package for the New LTO List and her interview scores and Reference Check Forms.

10The respondent filed Form 11 in response to the applicant's RFOP. It submits that the documents listed at 1, 2, 3, 4, 5, 6, 9, 10, 14, 15 and 16 are not arguably relevant to this Application. With respect to documents listed at 1 and 2, it submits that the new list was not compiled until May 1, 2013 and has no relevance to the hiring decision of February 7, 2013. With respect to documents listed at 3, 4, 5 and 6, it submits that these documents which are only relevant to the new allegations made in the applicant's Reply and it re-states its reliance on Guynane in respect of production of documents at 3, 4 and 5 as they relate to allegations previously dealt with and dismissed. It asserts that documents at 6 are not related to the alleged single act of discrimination on February 7, 2013, and are only relevant if the applicant claims the Board made its hiring decision based on cost, an allegation he has not made. It further asserts that documents listed at numbers 7 through 13 do not exist. It submits that documents listed at 13, 14 and 15 are not relevant, as this Application deals only with the single decision of the respondent not to hire the applicant for a single LTO position at the beginning of February 2013.

11The applicant filed a further RFOP in which he referred to his submissions as his "Response to Respondent's Response to Applicant's Request for an Order". In his submissions, he makes submissions about documents the respondent provided in its disclosure to him of arguably relevant documents. He also disagrees with the respondent's submission that many of the documents he seeks are not arguably relevant.

12The respondent filed Form 11 in response to the applicant's second RFOP, submitting that the applicant's RFOP was simply in the nature of argument, with no documents being requested.

DECISION

The Respondent's Request to strike the applicant's Reply

13The respondent's RFOP in which it requests that the applicant's Reply be struck, or that the applicant seek to amend his Application, appears to be an attempt to underscore the fact that the applicant has attempted to use the Reply to place new allegations before the Tribunal. The applicant has filed no Request to amend his Application, and the only allegation properly before the Tribunal is the allegation stated in the Application, namely, that the respondent discriminated against the applicant on the basis of age when on February 7, 2013, it advised him that it had awarded the teaching position he sought, to someone else. This is the only allegation to which the respondent has had an opportunity to respond. There is no allegation of reprisal properly before the Tribunal, nor are there allegations that the respondent discriminated against him on the basis of age in earlier job competitions, nor that it revised its list of long term occasional teachers in an effort to exclude older more experienced teachers, nor that the respondent's February 7, 2013 hiring decision was influenced by the fact that he was seeking to obtain enough teaching days to qualify him for Employment Insurance.

14With respect to the respondent's assertion that the applicant makes a new allegation that there were other people in the room when the principal called on February 7, 2013 to tell him he was not the successful candidate, I do not find that this is an additional allegation of discrimination. While the applicant articulates this for the first time in his Reply, I am not persuaded that it is anything more than an indication of how the applicant intends to prove that the principal told him his interview was "great". As such, I do not find that it rises to the level of a new allegation, and I am not persuaded that it should be disregarded. It is a version of events surrounding the allegation, which the applicant may seek to establish at the hearing of this matter.

15The respondent also submits that the applicant's submissions in respect of remedy are new. In its Response, the respondent questioned the amount of financial compensation sought by the applicant, stating that he would not have been available to complete the entire teaching assignment. In his Reply, the applicant submitted that he only made himself unavailable for those days once it became apparent that the job was being awarded to someone else. I do not find that this is inappropriate for Reply, as it is in direct response to the assertion about his availability, as found in the Response. In his Reply, the applicant has also indicated that the financial compensation he seeks includes money "lost from employment Insurance and compensation for mental anguish and reprisal". To the extent the applicant seeks compensation for reprisal, there is no reprisal allegation properly before the Tribunal. To the extent that he has explained the basis for his request for financial compensation in his Reply, while this is not ideal, I am not persuaded that it is a new allegation and the applicant may provide evidence and make submissions regarding the basis for his request for financial compensation, at the hearing of this Application. The applicant is reminded, however, of his obligations pursuant to Rules 16 and 17 of the Tribunal's Rules of Procedure regarding disclosure of documentation and evidence.

16In sum, the respondent's RFOP seeking to have the Reply "struck" is dismissed, with the caveat that the only allegation properly before the Tribunal is the one made in the Application.

The Applicant's Request for Documents

17Though the applicant has filed two RFOPs, he has in fact only made one request for production of documents, as listed above.

18Given the fact that the only allegation properly before the Tribunal is the allegation relating to the respondent's hiring decision communicated to the applicant on February 7, 2013, the documents listed at 1 and 2 are not arguably relevant, as they address the applicant's allegation that the respondent later compiled a new list of long term occasional teachers. It post-dates the February 7, 2013 hiring decision and is not arguably relevant to the issue of discrimination in that decision.

19This Application relates to a single hiring decision and the applicant's assertion that the decision not to hire him was made for discriminatory reasons. While arguable relevance may not be a high threshold for the applicant to satisfy, there must be a nexus between the sought after documents and the subject matter of the Application. In my view, the applicant has not demonstrated that information relating to other hiring decisions is arguably relevant to whether his treatment in respect of the February 7, 2013 hiring decision was discriminatory. He has provided no information or submissions regarding details of the other job competitions or employees considered or hired and I am not satisfied that he has shown how the documents he seeks at 3-6 (except as noted below) and at 13-15 are arguably relevant to this Application. Accordingly, I do not find that there is a basis for an order for production of documents and decline to make such an order. Finally, the respondent has asserted that the documents the applicant seeks at 7-12 do not exist. Where the documents do not exist, no order for their production can be made.

20At 6 above, the applicant seeks a list of starting salaries for all LRO hires from 2010 to present. For the reasons stated above, I am not persuaded that such a list is arguably relevant to this Application. I am, however, persuaded that the salary of the successful candidate, Lisa McLeod and the salary which the Board would have had to pay the applicant, is arguably relevant to the Application, and the respondent is ordered to prove any existing documentation of such information. This is not a finding that the documentation will be admitted into evidence at the hearing of this matter, which is a matter which may be addressed at the hearing of this matter.

Other

21According to the Notice of Hearing the parties are to deliver to the other party and file with the Tribunal, disclosure required under Rules 16.2, 16.3, 17.1 and 17.2 of the Rules of Procedure, by February 3, 2014. In view of the timing of this Interim Decision, the parties' deadline for such disclosure is extended to February 10, 2014.

ORDERS

22The Tribunal directs as follows:

1. The respondent's RFOP seeking to have the Reply struck is dismissed, and the only allegation properly before the Tribunal is as stated in the Application;
2. The respondent is directed to provide any existing documentation showing the salary at the time of the candidate who was the successful candidate in the February 2013 job competition and the salary which the respondent would have had to pay the applicant.
3. The remainder of the applicant's RFOP seeking production of documents is dismissed.
4. The applicant's RFOP seeking production of documents is dismissed;
5. The parties are granted an extension for exchanging and filing disclosure required by Rules 16.2, 16.3, 17.1 and 17.2 of the Tribunal's Rules of Procedure.

23I am not seized.